The FCC was busy in November. On November 18, the FCC posted an Enforcement Advisory on robotexting and consumer protection, and on November 21 published a blog on robocalls. The FCC notes that the Advisory was issued to promote understanding of the clear limitations on the use of autodialed text messages, often referred to as “robotexts.”
The Advisory reminds us that the FCC’s TCPA rules apply to text messages as well as pre-recorded calls, and reiterates that “prior express written consent” is required for autodialed texts that include or introduce an advertisement, whereas “prior express consent” is required for messages that are not commercial in nature.
One helpful note in the Advisory is that the Commission has determined that when a caller reasonably relies on prior express consent to robocall or robotext a wireless number, and does not discover that the number has been reassigned to another party prior to making the call or text, the caller is not liable for the first call or text going to the called party who did not provide consent. Consistent with its July 2015 Omnibus TCPA Order (which is currently the subject of a legal challenge pending in the U.S. Court of Appeals for the D.C. Circuit), the FCC notes, however, the caller is liable for any continued calls or text messages to a reassigned number after the initial call or text, regardless of whether or when it learns of the reassignment.
The Advisory also provides a good general summary of the TCPA’s requirements and it is, therefore, a good resource to review if you are new to the rules or just looking for a refresher.
The FCC’s blog post emphasizes that unsolicited calls and text messages are more than just a nuisance because they are used to perpetrate criminal fraud, phishing attacks, and identity theft schemes. The FCC notes that, in its efforts to protect consumers from criminal scams and unlawful intrusions, the Commission took an important step to improve international collaboration by signing a Memorandum of Understanding (MOU) with members of the Unsolicited Communications Enforcement Network (“UCENet,” formerly called the “London Action Plan”). The FCC describes the members as a “team of robo-cops” and a global network of law enforcement authorities and regulatory agencies who combat unsolicited communications.
The UCENet MOU, as well as an MOU that the FCC signed last week with the Canadian Radio-Television and Telecommunications Commission, provides a framework for participating agencies to share enforcement data in cross-border regulatory activities.
These informational efforts are timely as TCPA class actions continue to be a hot area of litigation generating large settlements. For example, on November 9, 2016, a federal court granted final approval of a $49.9 million TCPA class action settlement against US Coachways, Inc. for allegedly sending out thousands of unlawful text messages to prospective customers. US Coachways cannot fund the settlement, however, thus the company assigned its rights against its insurer, who has refused to cover the liability, to the plaintiff and the class. The class must now seek redress by bringing a claim against US Coachway’s insurer to cover the liability. That case is Bull v. US Coachways Inc., No 1:14-cv-05789 (N.D. Ill.).
On November 22, 2016, TrueBlue Inc., a staffing company, agreed to pay $5 million to settle a TCPA class action alleging the company sent unwanted text messages even after requests that the messages stop. The case is Joseph v. Trueblue, Inc. et al., No. 3:14-cv-05963 (W.D. Wash.).
We continue to monitor developments in TCPA litigation. Please see this list of recent TCPA actions.